B-170623, OCT. 6, 1970

B-170623, OCT. 6, 1970

TEMPORATY DUTY - PER DIEM - RETROACTIVE AMENDMENT TO ORDERS SUSTAINING SETTLEMENT DISALLOWING CLAIM FOR PER DIEM FOR TEMPORARY DUTY AT PENTAGON WHICH REQUIRED MEMBERS TO COMMUTE DAILY FROM FORT HOLABIRD, MD. WHERE, AFTER MEMBER COMPLETED TEMPORARY DUTY UNDER ORDERS WHICH SPECIFIED "NO PER DIEM", AMENDATORY ORDERS WERE ISSUED TO CHANGE PERIOD OF TEMPORARY DUTY FROM 14 DAYS TO 44 DAYS, SUCH AMENDATORY ORDERS CANNOT BE GIVEN EFFECT SINCE THERE WAS NO ERROR APPARENT ON THE FORM OF THE ORIGINAL ORDERS.

TO CAPTAIN FRANCIS M. LANASA:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 27, 1970, REGARDING SETTLEMENT DATED JUNE 17, 1970, WHICH ALLOWED YOU REIMBURSEMENT FOR DAILY ROUND-TRIP TRAVEL BY PRIVATELY OWNED CONVEYANCE FROM FORT HOLABIRD, MARYLAND, TO THE PENTAGON, WASHINGTON, D.C. ON 14 DAYS DURING AUGUST 1969 PURSUANT TO LETTER ORDER 05124, DATED AUGUST 5, 1969, AS AMENDED.

LETTER ORDER 05124, HEADQUARTERS, U.S. ARMY INTELLIGENCE SCHOOL, FORT HOLABIRD, MARYLAND, DATED AUGUST 5, 1969, CONFIRMING VERBAL ORDERS, PLACED YOU AND TWO OTHER OFFICERS ON TEMPORARY DUTY FOR A PERIOD OF 14 DAYS, COMMENCING ON OR ABOUT AUGUST 4, 1969, AT THE OFFICE OF THE ASSISTANT CHIEF OF STAFF FOR INTELLIGENCE, DEPARTMENT OF THE ARMY, FOR THE PURPOSE OF PROVIDING TECHNICAL ASSISTANCE TO THAT ACTIVITY AND UPON COMPLETION THEREOF, TO RETURN TO PROPER STATION. THE ORDERS AUTHORIZED TRAVEL BY PRIVATELY OWNED VEHICLE AT THE RATE OF $0.07 PER MILE; STATED THAT YOU WOULD COMMUTE DAILY; AND PROVIDED THAT NO PER DIEM WAS AUTHORIZED.

LETTER ORDER DATED SEPTEMBER 22, 1969, AMENDED THE ORIGINAL ORDERS BY DELETING THE "NO PER DIEM" PROVISION AND BY ADDING A PROVISION "DUTY DAY WAS IN EXCESS OF 10 HOURS PER DAY." A FURTHER AMENDMENT DATED SEPTEMBER 26, 1969, ADDED "DUE TO ADMIN ERROR PER DIEM AUTH WAS OMITTED FROM ORDER." ON DECEMBER 18, 1969, AFTER THE TRAVEL AND TEMPORARY DUTY HAD BEEN COMPLETED, YOUR ORIGINAL ORDERS WERE AGAIN AMENDED TO CHANGE THE PERIOD OF YOUR TEMPORARY DUTY FROM 14 DAYS TO 41 DAYS.

YOUR ITINERARY SHOWS THAT YOU TRAVELED FROM YOUR HOME IN DUNDALK, MARYLAND, TO THE PENTAGON ON EACH OF 24 DAYS FROM AUGUST 4 THROUGH SEPTEMBER 5, 1969; FROM YOUR HOME TO FORT MEADE, MARYLAND, ON EACH OF 16 DAYS FROM SEPTEMBER 8 THROUGH 29, AND FROM YOUR HOME TO FORT MEADE, THENCE TO THE PENTAGON AND RETURN ON SEPTEMBER 30, 1969.

AS PROVIDED IN YOUR ORIGINAL ORDERS THE SETTLEMENT OF JUNE 17, 1970, ALLOWED YOU MILEAGE AT THE RATE OF $0.07 PER MILE FOR THE ROUND-TRIP DISTANCE FROM FORT HOLABIRD, MARYLAND, YOUR DUTY STATION, TO THE PENTAGON, WASHINGTON, D.C. ON EACH OF 14 DAYS. PER DIEM FOR THE TEMPORARY DUTY WAS DISALLOWED FOR THE REASON THAT THE LIMITATION IN THE ORIGINAL ORDERS REPRESENTS THE STATEMENT OF THE COMMANDING OFFICER THAT NO ADDITIONAL SUBSISTENCE EXPENSES WILL BE INCURRED AS PROVIDED BY PARAGRAPH M4201, ITEM 14, JOINT TRAVEL REGULATIONS.

YOU WERE ADVISED IN THE SETTLEMENT THAT SINCE TRAVEL ORDERS MAY NOT BE AMENDED RETROACTIVELY SO AS TO INCREASE OR DECREASE RIGHTS THAT HAVE ACCRUED AND BECOME FIXED UNDER APPLICABLE ORDERS AND REGULATIONS FOR TRAVEL ALREADY PERFORMED, THE ORDERS OF DECEMBER 18, 1969, ISSUED MORE THAN TWO MONTHS AFTER THE EXPIRATION OF THE TEMPORARY DUTY AUTHORIZED IN THE ORIGINAL ORDERS, WERE WITHOUT EFFECT TO EXTEND THE PERIOD OF TEMPORARY DUTY.

IN YOUR LETTER OF JULY 27, 1970, YOU QUESTION THE ADEQUACY OF THE EXPLANATION MADE IN THE SETTLEMENT OF THE REASON WHY THE RETROACTIVE ORDERS WERE NOT CONSIDERED EFFECTIVE TO AUTHORIZE REIMBURSEMENT FOR THE FULL PERIOD OF YOUR DUTY. YOU URGE THAT YOU SHOULD NOT BE PENALIZED FOR AN ADMINISTRATIVE ERROR OF AN ORDERS CLERK AND POINT OUT THAT THE OTHER MEMBERS OF THE GROUP WERE ALL REIMBURSED A GREATER AMOUNT ALTHOUGH YOUR TEMPORARY DUTY PERIOD WAS MUCH LONGER.

IT IS THE GENERAL RULE THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE THE RIGHTS WHICH HAVE ACCRUED OR BECOME FIXED UNDER THE LAW AND REGULATION, WHEN THE ORDERED TRAVEL HAS BEEN PERFORMED. AN EXCEPTION TO THIS RULE HAS BEEN RECOGNIZED WHEN AN ERROR IS APPARENT ON THE FACE OF THE ORIGINAL ORDERS, OR WHEN THERE HAS BEEN A FULL DISCLOSURE BY THE ADMINISTRATIVE OFFICE CONCERNED OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF SUCH ORDERS AND THE RECORD ESTABLISHES THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713 (1944); 24 ID. 439 (1944).

FOR THE PURPOSES OF THAT RULE THE ORDERS AS THEY APPLIED TO THE OTHER OFFICERS WERE TIMELY AMENDED ON SEPTEMBER 3, 1969, TO EXTEND THEIR TEMPORARY DUTY PERIOD TO 29 DAYS. CONSEQUENTLY, THE AMENDMENT TO THE ORDERS IN THEIR CASES CONSTITUTED AUTHORITY FOR THE ALLOWANCE OF MILEAGE FOR THE TRAVEL AND TEMPORARY DUTY PERFORMED FOR THE ADDITIONAL PERIODS.

HOWEVER, NO ADMINISTRATIVE EXPLANATION HAS BEEN FURNISHED AS TO WHY THE TIMELY AMENDMENT TO THE ORDERS DID NOT INCLUDE YOU, OR WHY AMENDING ORDERS WERE NOT ISSUED IN YOUR CASE UNTIL MORE THAN TWO MONTHS AFTER THE COMPLETION OF YOUR TEMPORARY DUTY. IN SUCH CIRCUMSTANCES AND SINCE NO ERROR IS APPARENT ON THE FACE OF THE ORIGINAL ORDERS, THERE IS NO LEGAL AUTHORITY ON THE PRESENT RECORD FOR THE PAYMENT TO YOU OF TRAVEL ALLOWANCES IN ADDITION TO THE AMOUNT ALLOWED BY THE SETTLEMENT OF JUNE 17, 1970.

ACCORDINGLY, THE SETTLEMENT OF JUNE 17, 1970, MUST BE SUSTAINED.